The Madisonian Constitution

George Thomas

Publication Year: 2008

Today, we think of constitutional questions as being settled by the Supreme Court.
But that is not always the case, nor is it what the framers intended in constructing the three-branch federal government. This volume examines four crucial moments in the United States' political history—the Civil War and Reconstruction, the Progressive Era, Franklin Delano Roosevelt's presidency and the New Deal, and the Reagan revolution—to illustrate the Madisonian view that the present rise of judicial supremacy actually runs counter to the Constitution as established at the nation’s founding.
George Thomas opens by discussing how the Constitution encourages an antagonistic approach to settling disputes, thereby preserving itself as the nation's fundamental law rather then ceding that role to the president, Congress, or Supreme Court. In considering the four historical case studies, he focuses on judicial interpretations and the political branches' responses to them to demonstrate that competing conceptions of constitutional authority and meaning, as well as intergovernmental disputes themselves—rather than any specific outcome—strengthen the nature of the nation's founding document as a political instrument.
Engagingly written and soundly argued, this study clarifies and highlights the political origins of the nation's foundational document and argues that American constitutionalism is primarily about countervailing power not legal limits enforced by courts.

Contents

Preface

In drafting the Massachusetts Constitution of 1780, the oldest constitution currently functioning, John Adams spoke to “The Frame of Government,” famously putting forward the axiom that in the commonwealth “the legislature, executive, and judicial power shall be placed in separate departments, to the end that it might be a government of laws and not of men.” Such an understanding, as James Madi-...

Introduction

To make a government requires no great prudence. Settle the seat of power, teach obedience: and the work is done. To give freedom is still more easy. It is not necessary to guide; it requires only to let go the rein. But to form a free government; that is, to temper together these opposite elements of liberty and restraint in one consistent ...

1. Madison’s Complex Constitutionalism

Constitutionalism in the American tradition is defined by the insistence upon
a written constitution as fundamental law that “prescribes the limits of all delegated
power.”1 This move, so much a part of early American constitutional thought,
attempts to empower and limit government. But how do we make the written
constitution effective? ...

2. Congress, the Supreme Court, and the Meaning of the Civil War Amendments

On the eve of the Civil War, Abraham Lincoln argued that states could not, as a
matter of constitutional logic, secede from the Union. Yet the Constitution did not
specifically address this question. And Lincoln himself insisted that much of the
conflict threatening to tear the Union apart stemmed from questions that the Constitution
did not explicitly answer: “no organic...

3. The Progressive Reconstruction of American Constitutionalism

In the spring of 1895, the Supreme Court struck down the newly passed national income tax,1 held that the Sherman Antitrust Act did not apply to a virtual monopoly of sugar manufacturing,2 and, critics insisted, used this same act to uphold an injunction against a labor strike.3 The public explosion in reaction to these cases sparked a great debate about the nature of judicial power in a democratic society. ...

4. Discontinuities in the “Constitutional Revolution of 1937”

After the Supreme Court struck down the National Recovery Administration
(NRA) in Schechter Poultry Corporation v. the United States, Franklin Delano Roosevelt
delivered an extraordinary radio address in which he called Schechter the most
important decision “of my lifetime ...

5. Unsettling the New Deal and the Return of Originalism

Ronald Reagan consciously drew parallels between himself and Franklin Delano Roosevelt—so much so, in fact, that after his acceptance speech at the 1980 Republican Convention, the New York Times lead editorial ran under the headline: “Franklin Delano Reagan.”1 But, as William Leuchtenburg writes, “Reagan presented him-self as Rooseveltian . . . not in order to perpetuate FDR’s political tradition but for ...

Conclusion

The separations at the heart of the American constitutional order, while bringing to mind the tensions of the mixed polity, are wholly republican. And if the tumult in America has largely been characterized by discordant constitutional understandings, rather than violence, these tensions can still be seen as complementary to constitutional liberty and self-government. Writing...

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